tv [untitled] September 23, 2013 6:00pm-6:31pm PDT
anybody and i would also like to correct a few things, mr. true said. and number one, these were 14 pages of subnative changes and he was very careful, although he failed to do so, to try to avoid using the word subnative and they spent and they said before the actual meeting the same afternoon of the committee meeting at the full board meeting they said that we spent the entire weekend, hours and hours and hours working on this, and i find it hard to believe and hard to swallow that you could spend that much time working on something and not have it be subnative and the second thing is that when you are the person on the receiving end of the stick and in other words, all of the people in park merced i think that your perspective of what is subnative would be different than what the city wants to consider when they are hell bent to pass legislation that they want done because it is worth billions of dollars. >> i would like everyone to notice that i am reading from a
summary prepared in advance of this hearing and the findings of this commission are so predictable that it makes me feel clarvoyant and the only thing that i am clear on is whether it is covering the back sides or kissing them and again, what difference does it make, the end rault is the ethics commission finding in favor of the city and against the values and interest of the citizens of san francisco. in this case the board of supervisors managed to discriminate against and violate the rights of so many protected classes that it is impossible to enumerate them, the elderly, single parents, people of color, veterans and disabled and the list goes on and i have told this to the board of supervisors directly, and this commission today s from what i can tell, going to put its perimeter on those actions. they wanted to pass this and they didn't want the bad
subpolicety of having all of these disenfranchised people showing up and making public comment and you can't tell me when you hand out a document that the summary of the points and it takes the complainant another year to get the actual 14-page document that you handed them out at the time of the hearing and that is nothing but pure unadulterated... >> and patrick shot and another mal able point of... is the frequency with which this committee and in its complaints and never discusses any of the rationale in the ordinance of determination from the sunshine task force referring to the matter to you you never ever, ever, discuss their rationale
of why the referrals en end up here and so physical therapies... that you don't take into consideration in the findings and you never discuss them and you never let them effect your esteemed judgment. >> i would like to add that this is being broadcast on public television and if we could keep our language to such that does not have to be bleeped i would appreciate it and so would the audience. >> absolutely, right we should continue refer to it as amulta cult er and stop the public raid of the library and don't give money to the friends of the library, and i am a little bit shagrined or shocked that you fail to understand what
really is at stake here. first of all, the words subnative and the words substantial are not synonyms. and what we are really talking about is something substantial. and the crucial point is whether at the time the public had its only opportunity to make public comment, that they knew the substance of what they were commenting on. if you find that there are things that come before the final action, that the public should ahave an opportunity to comment on, then that is substantial change in the public should have been given an opportunity to comment again, that is the law. and the reason that it is the law is because the body itself
needs to be informed of the testimony, judgment, perspective of the citizens that this applies to. this is why we have public comment provisions. it is not for the benefit of the commenter. it is for the benefit of the deliberative body that needs that perspective and that input. and that just plain evidence. and to make its determination. now, when they made changes, claimed that they were not subnative, and therefore, they could be passed without the public, having its chance to determine for itself, whether that was meaningful or not, you have basically disenfranchised those citizens. and so it is not the interpretation of what is a
document, or what is substantial, even. the issue is whether, it is something that the public could ask and should ask, had the opportunity to comment about. and when you say, that they don't, you are taking a very strong step, i should tell you that this is not the only incidence of this. this happens all of the time. i don't, or can't or don't have time to go to the indenses now, where they basically make, changes, on their feet, the opportunity for public comment was months ago. and it goes through... >> thank you. >> peter warfield.
i'm not a party to this, and i'm disappointed that pastor gavin has not had a chance to state her case here. but i think that it is a very dangerous matter to leave to somebody else, a definition of what is and what is not substantial and therefore, what does the public have a right to notice on and what does it not? i would like to know why doesn't this body discuss the substance of those 14 pages and then, on the basis of your own judgment, determine whether those were in the category of requiring, notice and public comment appropriately. and the sunshine task force evidently did do that. and its finding of fact and conclusions of law on page 2 of its august, 23rd, determination said that the task force
concluded that the introduction of 14 pages of proposed amendments without providing copies or adequate review time to members of the public should have prompted supervisor eric mar as chair of the committee to try to continue the meeting. and there is also reference of a two-page summary. and how insubstantial are changes that occupy 14 pages and require two-page summary. and according to the pastor gavin's testimony it says on the second page of that same letter, she said that the public and sen sit tenants were given only a two-page summary of supervisor chiu proposed amendments to the development agreement and denied the opportunity to read the actual text of t4-page-pages of amendments. why don't you ask what happened to someone who was there. and there is someone here who has given testimony, who was
there. i was not. >> and further, in another order of determination, of november 1, 2011, the task force again found, and i will read from the decision and order of determination. found that president, david chiu, and supervisor weiner and violated sunshine ordinance section 67.7 b for not providing the public with copies of the development to the agreement and which were provided to the policy body. >> and if you are not willing to discuss the contents and then how can you be prepared to say that the contents were not substantive. and i also would like to say that the supervisor testimony initially said that the public was able to comment, the public, i think that he corrected himself. it should be clear that the public is not allowed to comment at a board of supervisors meeting when it has been held at a committee
meeting. >> thank you. >> with all due respect for the city attorney's office, the single deputy city attorney sitting in front of the podium, is not necessarily the best person to determine what is substantive and what isn't, is this agreement. and if the change took 14 pages, how long was the entire agreement. i really think that the roll of the investigator in this matter, should have been to put himself in the position of the lawyer, who is going to decide whether it was substan ard or not. the task force had two lawyers, and i believe at the time that this case was heard.
and neither of them were business lawyers. and so the whole issue, what is the subnative change to a long, long, development agreement, is not something that could be handled off the cuff. push >> and i think without that, in this separate investigation. what the law says and what the agreement provided for. and what the changes to that are two different issues. >> >> any further comment, on this matter? >> if not, commissioners. and any further questions or comments from you? >> well, i have got to say that i am... disturbed with the idea that the amendments could be
introduced without the public having an opportunity to see them and digest them, and whether 13 or 14 pages of or should be deemed as non-subnative and it is a practice which i think that we ought to discourage and so that i am not prepared to find that they willfully violated the sunshine ordinance, but i am not prepared to say that their conduct was consistent with what i think is the way in which the board of supervisors and its committees ought to operate. >> what does that mean, that you think that the proposed
amendments did subnative change the agenda item but that it was not intentional? well, i guess that the problem is that i tend to agree with some of the comments that have been made as to how you can determine 13 pages are non-subnative, because i think that one of the things that the public is concerned about is that you have developers who are wired into the political process and who have everything else and on the day of the hearing that they are to that the committee is supposed to deal with it, an agreement, and suddenly, changes come in. and they say, well, they are not, they are not subnative and therefore, there is not any reason why the public should have had 72 hours to deal with
them. and that troubles me. >> okay. >> i don't know why it was that the supervisor chiu offered that morning why they could not have been proposed 72 hours earlier. and it is just that process that i am disturbed by and that i find i don't think we should give a message to the board of supervisors, that they can should have side stepped the public notice requirement. by simply saying to come up with amendments and whether they are non-subnative. >> i am not sure that the question is whether the amendments were subnative, i think that the question is whether the amendments changed the noticed agenda item and to me those are two different
things. you can have things that are subnative that are proposed but don't change the broad notice requirement. and that is why i think we should make a finding of no violation of the ordinance. >> >> i will agree with commissioner hur. but to commissioner renne's point, that is where, that is sort of where i was headed. if indeed, it took a weekend or working all weekend to generate a list of changes, mr. true you used a technical, you said technical changes is that the word that you used? >> please. >> do you mind to come? >> that at some point in the weekend that somebody will say, well, these are significant enough that we will want to get
them to the committee as soon as possible and that is why i want to hear that you said that it is a process and it is kind of ever-moving and it is dynamic. and i'm just not sure if there is a trigger any time in that dynamic process where someone does say, you know what? we need to like, halt the process, and make sure that we deal with these significant changes or these subnative or technical changes, in a way that does not hold up the entire process and so i wanted to hear more about that and that was leading to my first question is which was when you do have time, what typically happens? does it get to the committee, you said that they are just posted. is there a specific action that is taken that gets the information to the committee? i know that they are posted on the website for the public. >> for the development through the share, to the commissioner andrew's, i am from supervisor david chiu's office, it depends
on the type of legislative item and the development agreements are approved generally and not always by the resolution of the board, and so the resolution, is you know, usually fewer than ten pages and described in broad terms what the terms of the development agreement are. and i have not looked back at this resolution specifically, but, it will describe, you know, the terms between the parties, and a little bit about the rent control for example, and on replacement units which was a big issue in this case. and so, if essentially whatever development agreement is in the file, behind that resolution is what the board is acting on and that can change, and even again, the day of the full board vote for example. >> as i mentioned for the shipyard. >> and i said earlier that it did not matter what the changes were and i think that i need to be able to be clear about that. and i have been to the two supervisor to work for the city for ten years now and if i had a nickel to ask the city attorney if changes to an
ordinance usually were subnative i would have a lot of nickels. the most common easiest example is whether it is subnative or not, let's say a fine amount, you have an ordinance that establish $a program and if you violate the program and the fine is $100 a day, let's say. if that noticed amount goes up by one cent, and then that is a subnative change that will require an additional 72 hours for the public to understand that instead of $100, for violating whatever the new law is passed it is going to be $100.01. and if that fine in committee goes down $80, and someone thought that there could be a fine, but now it happens to be going down because of some supervisor thought it was too high or whatever, that did not require increased public notice. and i was just looking back and it has been more than two years, i believe, since this land use committee meeting happened. and i was looking back at the 14 pages of changes and again, and the title and this is
exactly what they are, and we already believe that the rent control protections for replacement units at the park essentially the project was identification of the land use, and ever resident, at park merced was under the development agreement entitled to a new unit at the same rent control for life. and what we leave that the best protections were already stronger than those approved at the trinity project which is being built right now at 8th and market. but we thought that we needed to go further and so we worked with the attorney to see what we can do and looking at state law, and basically you know said that this is what we thought needed to happen for president chiu to be supportive and there is already a presumption and understanding on behave of the public and this is disputed of course but it was noticed and the development agreement said that those replacement units everyone was entitled to the unit at rent control replacement unit and so what we
did is to tighten that screw down a little bit more and the bulk of the 14 pages is stronger provisions around liquid ated damages and the court would find that what we are doing was not, or was beyond what state law allowed. and so, we think that they were important and we saw them as an important policy move, but, in no way, did they change the underlying fundamentals, you know, of the development agreement and the bargain that we believe that the development agreement struck from a policy standpoint. and so, to commissioner renne's point, i believe, that it is very important and we believe that it is important that the public have a full opportunity to debate and discuss, and issues of this import and these issues before the board for some months, and in fact it has been continued from earlier in the year when it was at the full board on a sequa appeal and so there is a lot of public
discussion around the issues. and i myself talked about it in front of public groups for months, afterwards. but, we strongly believe that the development agreement, and the disscreption of it in the resolution was covered by the agenda and that the changes were that made to it, only so to speak to use my med fore, decreased the cost of the fine and therefore did not require an additional continuance and i do want to say to commissioner renne's point that i will take back to president chiu and some of another supervisors the point around the amendment and changes that were made. it is part of the administrative process and i think that the supervisors try hard to get their changes out there, and you know, in a way that provides a full debate as possible. but we do take seriously these rules around public comment if there are subnative changes.
>> i have a follow up question, it was brought up in the public comment something that will refer to a narrow scope of expertise around the development projects. with the city attorney's office. you said that you were working with the city attorney's office. was the same representative that you have been working on in the project there, the same attorney there to answer any questions? and to your recollection can you remember, if they were ever called on? >> i thank you for that question, commissioner andrews. and i did not look back at the transskipt before tonight. >> i have before the hearing but the city attorney who was... and the primary real estate drafting attorney, on the development agreement. and he worked and consulted as i did with the deputy city
attorney who was a friend of the board of supervisors so i believe that both of them were at that hearing and one of them spoke and i want to say that it was the one that usually speaks to the board but i think that they both might have been was it sullivan, or do you remember? >> sullivan was the... (inaudible) and adams is the one who answered. >> it is typical for, and occasionally a deputy city attorney who worked on an issue will talk but it is typical for the deputy city attorney who works on the board of supervisors be the one to make the final comments. thank you. >> thank you. >> call the question. >> any further discussion? >> all right. could you restate your motion, please? or could you read it back to us?
>> i can restate it. i move to find that there was no violation of the sunshine ordinance task force, strike that. what is going on here? >> commissioner renne? >> the motion was that the supervisors did not violate the sunshine ordinance as to the current allegations before the commission. >> the current allegations before the commission. >> all in favor? >> aye, aye. >> all opposed? >> aye. >> the motion passes. thank you for your comments. and thank you commissioner renne. >>
>> and the next item is discussion of handling of draft regulations that are come to us from the sunshine ordinance task force, mr. st. croix? >> most of these are for the purposes of clarifying some language that is not precisely clear. and we can go through them section by section. the commission considered the decision points individually or in block or you can do them section by section. >> so the first decision point
deals with show cause hearing. the section is not clear as the memo points out whether each respondent will make a 5 minute opening statement or if it has to be shared. so we are proposing that each respondent are able to make 5 minute statement and three minute rebuttals when the commission hears these cases. and then, decision point 1 b, clarifies that a party that fails to submit written documents by the deadline, is allowed to bring them to the actual hearing and request permission from the commission to submit said documents. and so it gives each party a little more latitude in responding. >> that is section one.
>> okay, i think that we should take them one by one. >> okay. >> the first one, decision 0.1 a. commissioners any questions or discussion on that? >> so, commissioner, chair, ad hand, one point i am fine with the change to add each respondent and complainant with respect to seeing that any party who fails to submit the documents by the deadline can bring them with the hearing. i don't see any need to at that. the chair at her discretion can grant a party the right to provide the documents when they are here. i think that if you put in the regulation that they can do that, it is going to make it unlikely they are going to present them ahead of time the way that we want them to.
i think that it behoofs the public and helps us to have the documents ahead of time and under the circumstances that they can't be brought to the end and i think that we could present that then but i don't think that beshould put that in the regulation. >> i would agree with that. >> so, i am just trying to figure out, is it easier if we vote on each one or should we vote on all of them at one point? >> i think that it is probably east fer we do it as a group. >> yes. on voting. >> yes. >> section by section. so, for example, commissioner hur might make a motion to accept recommendation 1 a and reject recommendation 1 b. >> so moved. >> second? >> i will second. >> thank you. >> and make a clarification? >> sorry, one 1 b offers with changing five days to five
business days. so that it will allow the staff time. >> yeah, i'm fine with that. >> okay. >> okay. >> and it makes sense to me. >> okay, so the motion is to not approve the decision 0.1 a to approve the change to 5 business days in 1 b. >> i think that you want to accept one a. >> accept one a. and except in one b the change to five business days and reject the remainder >> we have a second on it. >> public comment? >> public comment on this point? >> yeah. >> commissioners, ray hartz, director of san francisco open government and as we are doing
this i found something that i think is highly questionable, it says respondents may make an opening statement, it is not clear if each can make it and what it looks like is that you are saying that there are multiple respond ants they get an opportunity to give a presentation and if there are multiple complainants they are not mentioned. you could have nine people in the last case there were a number that were listed and you are saying that they have to share whatever time and the complainants each get 5 minutes. >> that is totally agregios, it gives them five or ten times the amount of time to rebutte the cases. and if you are going to be fair, you have to let multiple complainants have the same, latitude to present as a respondent have, to rebut. an